HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Elizabeth Crompton
Applicant
-and-
Fairlane Performance Management Inc.
Respondent
INTERIM DECISION
Adjudicator: Sherry Liang
Indexed as: Crompton v. Fairlane Performance Management
1This is an Application filed on September 18, 2009 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”).
2By Interim Decision dated December 1, 2010, 2010 HRTO 2391, the Tribunal denied a Request to dismiss the Application under section 45.1 of the Code. The Tribunal also requested the submissions of the parties on whether it is appropriate to defer the Application pending completion of the applicant’s appeal to the Umpire from the decision of a Board of Referees.
3The respondent has made written submissions in support of deferral. The applicant has not filed submissions.
4The applicant alleges, among other things, that her employment was terminated in September 2008 at least in part because of a disability. The respondent states that the termination of her employment was based on the applicant’s misconduct in the workplace.
5The applicant made a claim for Employment Insurance benefits. In its decision, the Board of Referees found the allegations of misconduct substantiated and allowed the appeal from the initial decision to grant the applicant EI benefits. The applicant has appealed the Board of Referees decision to the Umpire. A hearing date was originally scheduled for July 7, 2010, then for October 13, 2010. On November 1, 2010, the Umpire issued a decision that the appeal is “peremptorily adjourned to another date” and that there would be “no further adjournment, except for serious reasons”.
DECISION
6Section 45 of the Code provides that the Tribunal may defer an application in accordance with the Tribunal’s Rules of Procedure. Rule 14.1 of the Tribunal’s Rules provides that the Tribunal may defer consideration of an Application, on such terms as it may determine, on its own initiative or at the request of any party. The Tribunal will consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application.
7In Calabria v. DTZ Barnicke, 2008 HRTO 411, the Tribunal stated:
Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law. Some of the factors that may be relevant in deciding whether to defer consideration of an application before the Tribunal are the subject matter of the other proceeding, the nature of the other proceeding, the types of remedies available in the other proceeding, and whether it would be fair overall to the parties to defer, having regard to the status of each proceeding and the steps that have been taken to pursue them.
8In the case before me, it is evident that there is a significant overlap between the facts and issues in this Application and those that will be considered by the Umpire. The applicant claims that her dismissal and the respondent’s actions leading to her dismissal were discriminatory in that they were based at least in part on her disability. The respondent alleges that her employment was terminated for misconduct, allegations which the applicant describes as spurious. At the very least, the appeal to the Umpire will result in a determination of whether the assertions of misconduct are substantiated.
9In these circumstances, to avoid duplication of legal proceedings with the attendant risk of inconsistent findings, the Tribunal will defer this Application pending the completion of the appeal to the Umpire. The Tribunal directs the parties’ attention to Rules 14.3 and 14.4 which outline the procedure by which the Application may be brought back on after the conclusion of that process.
10I am not seized of this matter.
Dated at Toronto this 9th day of February, 2010.
”signed by”__________
Sherry Liang
Vice-chair